The Democrats’ New Voting-Rights Obstacle

There is a gnawing anxiety among voting-rights advocates that even if Democrats find a way to roll back the Senate filibuster and pass new federal legislation safeguarding access to the ballot, the Republican-appointed majority on the Supreme Court might still strike it down.

Last week’s Supreme Court ruling, in which the six Republican-appointed justices outvoted the three appointed by Democrats to uphold two Arizona laws that critics called racially discriminatory, has elevated that concern to a new height. It is forcing congressional Democrats and their allies to confront the question of whether it’s possible to “court-proof” their efforts to protect voting rights.

“A lot of people woke up this morning recognizing there are two really big thresholds and maybe the second one is now bigger,” Jessica Levinson, a law professor at Loyola Marymount University who specializes in election law, told me the morning after the Court’s ruling. “No. 1 is: How do you pass this legislation? And second: How do you protect it from this current Court?”

Democratic Representative John Sarbanes of Maryland, a lead sponsor of the sweeping Democratic election-reform bill known as H.R. 1, told me he remains confident that Congress has clear constitutional authority to set the nationwide floor of voting rights that the legislation would establish. “Our authority to do that … in respect to federal elections comes directly out of and is grounded in the elections clause of the Constitution,” Sarbanes said. “And I think there is plenty